It’s Not Over Yet.

I, for one, am elated that the Ninth Circuit Court of Appeals found Prop 8 Unconstitutional.  Source . However, I would be remiss if I didn’t at least bring up the one thing Prop 8 supporters have going for them- Prop 8 was passed by the voters. And that is a very good, very important point. Whenever the judicial branch overturns the will of the people, we all have an obligation to think twice about the rationale behind it. Even when our knee jerk reaction is to celebrate, take a moment for a sanity check because things may not always shake out in our favor. The Prop 8 supporters were right to bring this issue up and their briefing on the subject ain’t half bad.

That being said, and beyond the “will of the people” argument, I admittedly have a hard time understanding the Proponents’ reasoning. As far as I can tell, they feel that Prop 8 advances California’s interest in “responsible procreation and childbearing.” Stay with me here. They believe that children are better off when raised by two people who are, at least in theory, capable of biologically creating a child. That is, one man and one woman, because kids need both genders to partake in upbringing in order to become functioning members of society. The Proponents also say that Prop 8 reduces “irresponsible procreation”, e.g., there will be less bastards in the world. Therefore, they argue, because same-sex couples are not at risk of “irresponsible procreation” as a matter of biology and society has an interest in procreative sexual activity, there is simply no need to for same gender couples to get married. They also argued that Prop 8 would “protect” their little darlings from being taught in public schools that “same-sex marriage’ is the same as traditional marriage.”

The Ninth Circuit didn’t buy it, saying “[t]here is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging California’s opposite-sex couples to procreate more responsibly.” The court went on to note “[o]nly if Proposition 8 had actually had any effect on childrearing or “responsible procreation” would it be necessary or appropriate for us to consider the legitimacy of Proponents’ primary rationale for the measure…[i]t is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.” Did you catch the word “rational”? That’s the level of scrutiny, and in layman’s terms, it means you better have a really really really good reason for that law. I mean really good. Not just the “gay people make me feel ooky” platform.

Anyway, the long and short of it is that Proposition 8 is unconstitutional for two reasons: first, it deprives same-sex couples of the fundamental right to marry, which is guaranteed by the Due Process Clause, and second, it excludes same-sex couples from state-sponsored marriage while allowing opposite-sex couples access to that honored status, in violation of the Equal Protection Clause. This is because even though same gender couples have the same rights statutorily as their hetero counterparts, the Appeals Court focused on the lower court’s finding of fact that “[d]omestic partnerships lack the social meaning associated with marriage “and that the difference between the designation of ‘marriage’ and the designation of ‘domestic partnership’ is meaningful. The court relied heavily on Romer v. Evans, a United States Supreme Court case striking down an Amendment to the Colorado State Constitution that would have prevented anyone anywhere at any time recognizing gays and lesbians as a protected class. In his dissent, Judge Smith disagreed that the burden of denying marriage to lesbians and gays was similar to the burden in Romer and the really really really good reason (e.g. rational basis) was in preserving responsible procreation and optimal parenting. He noted that even though rational basis is the correct level of scrutiny, the fact Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated “marriage,” they still have the same basic set of substantive legal rights and attributes traditionally associated with marriage,” so no harm no foul. He also disagreed that the separation of gays and lesbians as domestic partners was different and not as good as marriage.

Here’s the thing. The Court did not (and could not) consider the broader issue of whether gays and lesbians should be allowed to get married. The judges were limited to only determining if Prop 8, as enacted, violated the United States Constitution. The broader question of whether same gender couples should have the right to get married remains unanswered. What is noteworthy is that the district court found that “[t]he campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.” Television and print advertisements “focused on … the concern that people of faith and religious groups would somehow be harmed by the recognition of gay marriage” and “conveyed a message that gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships.” I will be paying very close attention to that issue in future cases. And, I hate to tell you, but Perry won’t be the Roe v. Wade type of landmark case if it’s affirmed (I have every reason to believe it will be). It’s just too narrow. We have a long way to go, kids, before we can put this baby to bed. And it promises to be an exhausting journey. But at least we have a start.

8 Responses to It’s Not Over Yet.

  1. Mark Kernes says:

    Good thing Judge Smith wasn’t the decider on whether water fountains in the “Old South” (and too many other places) designated “black” and “white” were non-discriminatory because each delivers the similar water!

  2. Beth Hutchens says:

    Yes, it did smack of the tired “separate but equal” thing, didn’t it?

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  4. I would disagree on one point. The law does not need a “very good” reason. Rational basis review only needs a legitimate purpose–not a compelling. important, or substantial one. It just needs to be a reason that isn’t a “bad” one, like because California hates your guts (or Colorado in Romer), or because California wants to enhance trade relations with China (a power that the people surrendered to the fed). In fact, when it is not clear whether there is a legit reason, a court will try to make up a legitimate reason that lawmakers *could* have claimed. Judge Smith attempts to do so.

    And the law doesn’t need to do a very good job at supporting that reason. It just needs to be rationally related to the purpose, which is less than so much as reasonably related. I think the issue is closer than you make out. :( Cf. Lee Optical.

    I think the narrowness of the issue is good for three reasons. (1) It will let the Court move incrementally if it wants to, which the Court likes to do. (2) It’s damage control in case the court is not ready to make SSM a constitutionally protected right, and it very well may not be. (3) It may allow the 9th to have a second bite at the apple on a broader issue if the Supreme Court’s holding is similarly narrow. This stalling tactic may allow more states to get on board to make SSM legal, so that when the broader issue goes before the supremes, the supremes would feel more free to make SSM a constitutionally protected right.

    • Beth Hutchens says:

      I don’t disagree- perhaps I could have made my layman’s definition a little better. And I agree that’s what Judge Smith was trying to do. So mea culpa for being misleading. I remain unconvinced, though, that “procreative responsibility” is even a legitimate purpose. I don’t see how preventing gay couples from getting married will inspire hetero couples to breed responsibly (whatever that means).

      I agree with you that the narrowness is not a tragedy and may even be a good thing, but I’m not sure Perry will inspire other states to legalize ssm; those that want to will do so regardless and states that don’t won’t be inspired by the ruling to enact draconian legislation preventing ssm- they’d do that anyway. I’m confident there will be a perfect case to address the broader issues soon. My Magic 8 Ball says it will come from a state that is, shall we say, not known for being a Mecca of Tolerance. But then, my Magic 8 Ball isn’t known for its accuracy, so there that is for you. We shall see.

  5. Leo M. Mulvihill, Jr. says:

    Reblogged this on Philly Law Blog and commented:
    Further insight into the Prop 8 case.

  6. andrews says:

    Did you catch the word “rational”? That’s the level of scrutiny, and in layman’s terms, it means you better have a really really really good reason for that law. I mean really good. Not just the “gay people make me feel ooky” platform.

    Rational basis is actually a lot looser than you describe. It might not approve “gay people make me feel ooky”, but it comes pretty close. The court will even make up reasons if the articulated reasons are inadequate, but it is very hard to find something advanced by the legislature that a court will not deem adequate.

    You could probably change it to “the threat of having gay people near children makes us feel ooky” and survive rational basis.

  7. Beth Hutchens says:

    I think where I was *trying* to go is that the Proponents’ arguments were so mired in hate, fear mongering, stereotypes, and assumptions that are just flat out wrong, that it’s going to be hard to allow this one even under rational basis. I could have articulated that much better.

    Again, mea culpa.

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